Kain Colter starts union movement

January 28, 2014

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"It's become clear that relying on NCAA policymakers won't work, that they are never going to protect college athletes, and you can see that with their actions over the past decade," Huma said. "Look at their position on concussions. They say they have no legal obligation to protect players."

CAPA's initial goals do not include a call for schools to pay salaries, Huma said. However, he declined to rule out the possibility that CAPA would seek that type of compensation in the future and said he knows the public will begin speculating about scenarios in which players would receive a cut of the $5.15 billion in revenues currently generated by athletic departments in the five power conferences.

Those universities will be flush with new cash in the coming years due to the advent of the College Football Playoff, which starts next year, and the signing of lucrative, long-term media contracts that will more than double in value by 2020, according to the SportsBusiness Journal.

"The NCAA is a train wreck waiting to happen," Waters said. "What brought them to this moment is they couldn't control their greed. They put all this money in the system."

At the outset, only Division I FBS football players and men's basketball players -- the athletes at the center of the commercial enterprise -- will be eligible to join CAPA because they are best situated to make a case to be treated as employees, Huma said. Over time, CAPA may expand its scope to include other sports.

He said only scholarship players are eligible for inclusion, as they are already being compensated by schools in the form of a "grant-in-aid" that is capped at the level of tuition, room and board, books and fees.

"Players are not complaining about this arrangement," Waters said of the 40-plus-hour work weeks being devoted by players to their sport. "They're just calling it what it is -- pay for play.

"We expect to win this fight at the level of the NLRB."

By filing the union cards with the NLRB, CAPA triggered a process that could take years to resolve. The first group that will consider the request will be the regional board of the NLRB, whose decision can be appealed to the national board.

Gerard said he would "not be surprised" if it ends up in the federal court system.

Athletes playing for university-based teams are not considered employees by any legal body. They haven't been since 1953, when the Colorado Supreme Court upheld a determination by the state Industrial Commission that a football player at the University of Denver was an "employee" within the context of the Colorado workers' compensation statute.

As a result, the university was responsible to provide workers' compensation for his football injuries. The NCAA responded by coining the term "student-athlete" and mandating its use by universities. Use of that term, and other efforts to enforce the idea that athletes cannot also be employees, ramped up as the NCAA a few years later introduced athletic scholarships, a form of compensation for services provided.

The distinction has held, though since then the courts have come to recognize other students who provide services to universities as employees. Graduate students who teach, for instance, are recognized as employees of universities under laws in many states. Academics such as Robert and Amy McCormick of Michigan State have argued that athletes are employees under the common law definition of the National Labor Relations Act.